Surviving Spouse: Will or Family Law Share in Newfoundland and Labrador

You open the will and find it leaves you less than you expected. Many people in this position have heard that a spouse must 'elect' between what the will gives and what the law gives. It is natural to worry that accepting the will means giving up something.

In Newfoundland and Labrador the picture is different from what that phrase suggests. This article explains how the Family Law Act and the Family Relief Act work alongside a will, and the deadlines to watch. Because the clocks can be short, it is worth speaking with a lawyer early.

This article covers the law of Newfoundland and Labrador.

Is there a choice between the will and the Act?

The Family Law Act text contains no section requiring a surviving spouse to elect between the will and the Act. Section 21(2) says the rights a surviving spouse has under the Family Law Act are in addition to rights arising on intestacy or by will.

So the better question is usually not 'which one do I pick?' but 'what can I claim in addition to the will, and by when?' Be cautious about anyone describing a short election window; the Act does not set one out. Even so, how your own situation works can depend on the facts, so confirm it before you sign anything that releases your rights.

Who counts as a spouse

Under the Family Law Act, 'spouse' means persons married to each other, persons in a voidable marriage that has not yet been voided, or persons who went through a good-faith void form of marriage and are cohabiting or cohabited within the preceding year. For applications, it includes a widow or widower.

Cohabiting partners are treated differently under different laws. The Family Relief Act has its own definition, covered below. If you were not married, a lawyer can confirm which claims are open to you.

The division of matrimonial assets and its deadline

A surviving spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death. That deadline can be extended under section 83 where there are reasonable grounds, the delay was in good faith and there is no substantial prejudice to others. Do not rely on an extension; treat the one-year mark as firm.

Some assets never pass under the will in the first place. If spouses held the matrimonial home as joint tenants, the survivor takes it by right of survivorship without probate or estate administration. Life insurance with a named beneficiary is generally not part of the estate either. Looking at what is actually in the estate helps you see how much the will really controls.

Family Relief Act: a separate route

A dependant, meaning a spouse, cohabiting partner or child, may apply where a will does not make adequate provision for maintenance and support, or where an intestate share is inadequate. The application must be made within 6 months after the grant, though a judge may allow it for any undistributed part of the estate.

A cohabiting partner needs continuous conjugal cohabitation outside marriage for at least 2 years, or at least 1 year if the partners are together the biological or adoptive parents of a child.

The judge considers factors such as conduct, other support, the relationship with the deceased, the dependant's finances, other dependants' claims, provision made in life, services provided, contributions and Family Law Act rights. The court can order provision despite the will, can suspend administration, and can stop distribution once notice is served. An appeal lies to the Court of Appeal within 30 days.

Comparing the two routes

What to do next

• Note the date of death and the date of any grant; both start clocks.
• Do not sign a release or accept a distribution as 'final' until you have advice.
• List what you and your spouse owned, and how each item was held.
• Gather the will, any account statements, and details of your support needs.
• Ask the executor to hold back distribution if you plan a claim, and speak to a lawyer promptly.

Frequently asked questions